Equustek Decision Has Nothing to Do With Speech
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There. Did you feel that? A tremor in the First Amendment? Somewhere in cyberspace, a website has died, taking with it a tiny Yop of free speech. You can hardly be blamed for missing it against the sound of trillions of other Yops. But it happened and it will happen again. There. It just happened again. Do you feel less free now? Or are you comforted by the arrival of even more Yops to fill the void? Or do you realize that the right of free speech is not quantifiable?
In the slaughter-bench years of Web 1.0, the average website lasted just 44 days. There were about 3,000 active websites in 1994. By 2014, the web had grown by 33-million percent to nearly a billion websites, and there is a ceaseless fluctuation of active vs. inactive sites in any given month. But to hear some of the tech pundits and “digital rights” activists talk, one might get the idea that we are metaphysically 33-million percent more free today than we were 20 years ago—and that this gain must be protected at all costs. That every site is sacred.
When websites die, it’s usually from natural causes like business failure or loss of interest; but every once in a while, sites are ordered shut down or to be de-indexed by state actors because they facilitate some kind of illegal trade. And we’re just going to have to get comfortable with this idea because we now live in a time when a criminal operating in one part of the world can do tremendous harm to an individual or organization—or a whole nation—based thousands of miles away.
To meaningfully address this challenge we must abandon the misplaced idealism that the internet is inherently a benevolent place where civil liberties like free speech thrive on the principles of self-governance. This is a naive premise for any society—civil liberty has always required the rule of law—but apropos my last post about Packingham, this absolutist view of speech is also illusory because it overlooks the fact that corporations like Google and Facebook make decisions to hide, delete, emphasize, or organize speech all the time.
One group of websites that is allegedly doing harm across borders belongs to Datalink, a defendant against plaintiff Equustek in a major Canadian intellectual property litigation. I wrote about this case in detail in 2015, but the synopsis is that Datalink allegedly stole proprietary technology belonging to Equustek and began selling it as their own. When an enterprise is based on theft of trade-secrets (i.e. a counterfeit operation), the web provides easy opportunities to poach potential customers from the rightful supplier by building multiple websites, employing SEO, entering keywords, etc. And that’s exactly what Datalink is doing—redirecting Equustek’s prospective customers to its sites to sell products that allegedly infringe Equustek’s IP in the first place.
Pending trial, Equustek was granted injunctive relief by a Canadian court in the form of an order that Google de-index links to Datalink’s sites, not only for Google Canada but for search results worldwide. Google appealed the order, and last week, the Canadian Supreme Court upheld the lower court’s decision. What is most significant about this ruling is that the order addresses whole sites rather than individual pages, and it applies globally. The Court explained the common-sense rationale for the decision thus:
“Where it is necessary to ensure the injunction’s effectiveness, a court can grant an injunction enjoining conduct anywhere in the world. The problem in this case is occurring online and globally. The Internet has no borders — its natural habitat is global. The only way to ensure that the interlocutory injunction attained its objective was to have it apply where Google operates—globally.”
As usual, Google, the EFF, and others have claimed that this decision would chill speech, still evangelizing the idea that all activity—even illegal activity—must be considered speech when it is conveyed via the web. This dysfunctional, cybernetic theology must be abandoned if we are going to insist that our own technologies serve, rather than destroy, civil society. As the Court replied in this case,“We have not, to date, accepted that freedom of expression requires the facilitation of the unlawful sale of goods.” If we cannot accept at face value the simple logic that counterfeiting is not speech, then we are rapidly battering the First Amendment into a meaningless doctrine.
The relative ease with which any counterfeiter can hijack online traffic can put consumers at risk as well as legitimate suppliers, so Equustek has tangible implications beyond the high-level legal theories and principles being debated. A while back, I saw a post on the IATSE Facebook feed warning professionals who rig lights and sets about counterfeit shackles on the market. It’s a tiny object that, if it fails, can kill someone; and rational policy has to account for the fact that the internet creates unprecedented opportunities for substandard and counterfeit products to enter the supply chain. Multiply this example across any number of products, from food to firearms, and the potential results are neither theoretical nor have anything to do with free speech.
And as if on cue, NBC reported two days ago that a raid in the Philippines against a hacker organization called Avion turned up further evidence indicating that the owners of Backpage were taking an active role in facilitating the sex trade brokered through its site—including possible links to human trafficking. Readers may remember that the EFF has staunchly defended Backpage’s status as a neutral site protected by Section 230 of the Communications Decency Act, which I will argue is part of the same ideological dysfunction. I would not go so far as to accuse the EFF of defending child pornography and human trafficking; I don’t think they’re bad people in that organization. But I will accuse them of cultural capture—of taking such an absolutist view of these liability shields for service providers that they seem to make no exception for site owners who use the web to commit some very serious crimes.
As stated in a few posts, 2017 seems to be the year when private individuals, corporations, and legal authorities are finally calling bullshit on the internet industry’s exaggerated policy of non-intervention when it comes to mitigating harm. In the meantime, it is both illogical and ahistorical to suggest that the right of speech cannot tolerate a court order, which temporarily enjoins a non-party (Google) from facilitating harm being done to a plaintiff. I mean, did you feel it? Yeah, me either.
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